Singh v Minister for Immigration and Border Protection
[2014] FCA 1196
•7 November 2014
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2014] FCA 1196
Citation: Singh v Minister for Immigration and Border Protection [2014] FCA 1196 Appeal from: Singh v Minister for Immigration and Border Protection [2014] FCCA 1368 Parties: MANDEEP SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 395 of 2014 Judge: TRACEY J Date of judgment: 7 November 2014 Catchwords: MIGRATION – applications for extension of time and leave to appeal – appeal from the Federal Circuit Court – judicial review of decision to refuse Skilled (Residence) (Class VB) subclass 885 visa – where applicant failed to satisfy Public Interest Criterion 4020 – whether any appealable error – application refused Legislation: Federal Circuit Court Rules 2001 (Cth) – rr 13.03C, 16.05 Cases cited: Coulton v Holcombe (1986) 162 CLR 1 – cited
House v R (1936) 55 CLR 499 – considered
Singh v Minister for Immigration and Border Protection [2014] FCCA 1368 – cited
VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158 – citedDate of hearing: 6 November 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The applicant appeared in person Counsel for the First Respondent: Ms F Batten Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 395 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MANDEEP SINGH
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
7 NOVEMBER 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applications for an extension of time within which to appeal from the Federal Circuit Court and leave to appeal be refused.
2.The applicant pay the first respondent’s costs of the applications.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 395 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MANDEEP SINGH
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE:
7 NOVEMBER 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant came to Australia in 2005 as the holder of a student visa. In November 2011 he applied for a Skilled (Residence) (Class VB) subclass 885 visa. This application was refused by a delegate of the Minister on 4 July 2013. The delegate found that the applicant had failed to satisfy one of the criteria prescribed for such visas. That criterion was Public Interest Criterion 4020. It required that there should be no evidence before the Minister that an applicant had given to an officer of the Department a bogus document in relation to his or her application for a visa. The delegate found that the applicant had furnished such documents to the Department to support his application.
The applicant sought review of the delegate’s decision by the Migration Review Tribunal (“the Tribunal”). The Tribunal received evidence which satisfied it that the applicant had, indeed, submitted bogus documents to support his visa application. This evidence included a sworn statement from a person who had given evidence in a County Court criminal proceeding relating to the production of false documents including one of those which the applicant had provided to the Department. The Tribunal was not satisfied that any compelling circumstances existed which might warrant the waiver of the requirement that the applicant satisfy the criterion. The Tribunal affirmed the delegate’s decision.
The applicant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. His application contained four grounds none of which alleged jurisdictional error on the part of the Tribunal.
The application was listed for hearing on 7 May 2014. The applicant did not attend. A Registrar of the Court dismissed the application, pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
On 16 May 2014 the applicant filed an application in which he sought the reinstatement of his application pursuant to r 16.05(2) of the Rules.
A judge of the Court dismissed the application: see Singh v Minister for Immigration and Border Protection [2014] FCCA 1368. Her Honour was not satisfied that the applicant had provided any adequate reason for his failure to attend the hearing when it was listed, that the applicant had advanced any arguable case for judicial intervention or that it was in the interests of justice to allow the application to proceed.
THE APPEAL PROCEEDINGS
The appellant now seeks an extension of time within which to appeal and leave to appeal from the decision of the Federal Circuit Court.
The applicant’s grounds are not clearly expressed. I am unable to discern in them any allegation of error on the part of the Federal Circuit Court. Doing the best I can the grounds relied on by the applicant appear to be that:
(1)The applicant would like to make further (new) submissions in relation to the skills assessment and the work experience letter;
(2)The Tribunal denied the applicant procedural fairness by failing to provide him with sufficient time within which to file written submissions in support of his appeal;
(3)The Federal Circuit Court was misled by the solicitor for the First Respondent; and
(4)There had been “false and misleading evidence and manifest error” given to and made by the Tribunal.
The applicant was invited by the Court to provide written submissions in support of his applications. He did not do so.
In his written submissions, the Minister opposed the application for extension of time within which to seek leave to appeal. He submitted that “the appeal has no reasonable prospects of success” and for that reason, “it is not expedient in the interests of justice to grant leave.” The Minister asserted that the complaints failed to disclose any appealable error on the part of the Tribunal.
When the hearing was called on yesterday afternoon the applicant was not present. He attended some half an hour later and made short submissions relating to the merits of his claim to be granted a visa. He did not identify any appealable error on the part of the Federal Circuit Court.
The Court was exercising a discretionary power. I have read the Court’s reasons for refusing the applicant’s application for reinstatement in the light of the principles expounded by the High Court in House v R (1936) 55 CLR 499 at 504-5. The reasons do not disclose any error of principle or other error of a kind which would warrant intervention on appeal.
Although, as I have already observed, the applicant has not advanced any grounds of appealable error I am conscious that he is an unrepresented litigant. I, therefore, propose to say something briefly about the grounds which were advanced with a view to explaining why they would not have assisted the applicant’s challenge to the merits decisions of the delegate and the Tribunal.
The first ground of appeal would require the Court to undertake merits review of the Tribunal’s decision. It may not do so when undertaking judicial review.
Ground 2 relates to procedural fairness afforded to the applicant by the Tribunal. This ground was not raised before the Federal Circuit Court. That Court can hardly be criticised for failing to deal with an allegation which it was not called on to consider. “It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”: see Coulton v Holcombe (1986) 162 CLR 1 at 7; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [47]. In any event, the ground is unmeritorious. The applicant was represented by a migration agent before the Tribunal. There is no evidence that the agent or the applicant requested further time within which to provide written submissions. The applicant’s migration agent provided written submissions to the Tribunal on 2 December 2013 and a request was made by the applicant for the matter to be determined on the papers. The Tribunal requested additional information. It was provided by the applicant’s migration agent on 6 January 2014.
The third ground asserts that the trial judge was “misguided by solicitors of [the Minister]”. The applicant did not particularise this ground and no attempt was made to support it in oral argument. Such a serious allegation against the solicitors should not lightly have been made.
The fourth ground alleges “false and misleading evidence and manifest error” in and by the Tribunal. Again, the applicant did not particularise this ground. The applicant has failed to specify who it was alleged gave such evidence to the Tribunal or the nature of that evidence. In these circumstances it is not possible to determine whether or not the Tribunal had been led into error.
DISPOSITION
The applications for an extension of time and for leave to appeal should both be refused with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 7 November 2014
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